Senate Bill No. 447

(By Senator Sprouse)

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[Introduced February 1, 2006; referred to the Committee

on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-42-9, relating to providing that health care providers, health care institutions or health care payers are not required to participate in abortion procedures that violate their respective consciences; providing immunity for health care providers, institutions and payers for refusing to participate in abortion procedures; prohibiting discrimination against health care providers, institutions and payers that refuse to participate in abortion procedures; prohibiting the denial of assistance payments due to a refusal to participate in abortion procedures; and providing civil penalties for violations of said section.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §33-42-9, to read as follows:
ARTICLE 42. WOMEN'S ACCESS TO HEALTH CARE ACT.
§33-42-9. West Virginia Abortion Procedure Rights of Conscience Act.

(a) Short title. -- This section may be known and cited as the "West Virginia Abortion Procedure Rights of Conscience Act."
(b) Definitions - As used in this section, the following words and phrases have the following meanings:
(1) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substances or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.
(2) "Abortion procedures" means any phase of patient medical care, treatment or procedure relating to performing an abortion, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery or any other care or treatment rendered by health care providers or health care institutions.
(3) "Health care provider" means any individual who may be asked to participate in any way in an abortion procedure, including, but not limited to: a physician, physician's assistant, nurse, nurses? aide, medical assistant, hospital employee, clinic employee, nursing home employee, pharmacist, pharmacy employee, researcher, medical or nursing school faculty, student or employee, counselor, social worker or any professional, paraprofessional, or other person who furnishes, or assists in the furnishing of, an abortion procedure.
(4) "Health care institution" means any public or private organization, corporation, partnership, sole proprietorship, association, agency, network, joint venture, or other entity that is involved in providing health care services, including, but not limited to: hospitals, clinics, medical centers, ambulatory surgical centers, private physicians' offices, pharmacies, nursing homes, university medical schools and nursing schools, medical training facilities, or other institutions or locations where abortion procedures are provided to any person.
(5) "Health care payer" means any entity or employer that contracts for, pays for, or arranges for the payment of, in whole or in part, any abortion procedure, including, but not limited to, health maintenance organizations, health plans, insurance companies or management services organizations.
(6) "Employer" means any individual or entity that pays for or provides health benefits or health insurance coverage as a benefit to its employees, whether through a third party, a health maintenance organization, a program of self-insurance, or some other means.
(7) "Participate in an abortion procedure" means to counsel, advise, provide, perform, assist in, refer for, admit for purposes of providing, or participate in providing, any abortion procedure or any form of such service.
(8) "Pay" or "payment" means pay, contract for, or otherwise arrange for the payment of, in whole or in part.
(9) "Conscience" means the religious, moral or ethical principles held by a health care provider, the health care institution or health care payer. For purposes of this section, a health care institution or health care payer?s conscience shall be determined by reference to its existing or proposed religious, moral or ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations or other relevant documents.
(c) Rights of conscience of health care providers. -- A health care provider has the right not to participate, and no health care provider may be required to participate in an abortion procedure that violates his or her conscience.
(d) Immunity from liability. -- No health care provider shall be civilly, criminally, or administratively liable for declining to participate in an abortion procedure that violates his or her conscience.
(e) Discrimination. -- It shall be unlawful for any person, health care provider, health care institution, public or private institution, public official, or any board which certifies competency in medical specialties to discriminate against any health care provider in any manner based on his or her declining to participate in an abortion procedure that violates his or her conscience. For purposes of this section, discrimination includes, but is not limited to: termination, transfer, refusal of staff privileges, refusal of board certification, adverse administrative action, demotion, loss of career specialty, reassignment to a different shift, reduction of wages or benefits, refusal to award any grant, contract, or other program, refusal to provide residency training opportunities, or any other penalty, disciplinary or retaliatory action.
(f) Rights of conscience of health care institutions. -- A health care institution has the right not to participate, and no health care institution may be required to participate in an abortion procedure that violates its conscience.
(g) Immunity from liability. -- A health care institution that declines to provide or participate in an abortion procedure that violates its conscience shall not be civilly, criminally or administratively liable if the institution provides a consent form to be signed by a patient before admission to the institution stating that it reserves the right to decline to provide or participate in an abortion procedure that violates its conscience. (h) Discrimination. -- It shall be unlawful for any person, public or private institution, or public official to discriminate against any health care institution, or any person, association, corporation, or other entity attempting to establish a new health care institution or operating an existing health care institution, in any manner, including, but not limited to, any denial, deprivation or disqualification with respect to licensure, any aid assistance, benefit or privilege, including staff privileges, or any authorization, including authorization to create, expand, improve, acquire, or affiliate or merge with any health care institution, because such health care institution, or person, association, or corporation planning, proposing, or operating a health care institution, declines to participate in an abortion procedure which violates the health care institution?s conscience.
(I) Denial of aid or benefit. -- It shall be unlawful for any public official, agency, institution, or entity to deny any form of aid, assistance, grants or benefits, or in any other manner to coerce, disqualify or discriminate against any person, association, corporation or other entity attempting to establish a new health care institution or operating an existing health care institution because the existing or proposed health care institution declines to participate in an abortion procedure contrary to the health care institution?s conscience.
(j) Rights of conscience of health care payers. -- A health care payer has the right to decline to pay, and no health care payer shall be required to pay for or arrange for the payment of an abortion procedure that violates its conscience.
(k) Immunity from liability. -- No health care payer and no person, association, corporation or other entity that owns, operates, supervises or manages a health care payer shall be civilly or criminally liable by reason of the health care payer?s declining to pay for or arrange for the payment of an abortion procedure that violates its conscience.
(l) Discrimination. -- It shall be unlawful for any person, public or private institution, or public official to discriminate against any health care payer, or any person, association, corporation, or other entity: (1) Attempting to establish a new health care payer; or (2) operating an existing health care payer, in any manner, including, but not limited to, any denial, deprivation, or disqualification with respect to licensure, aid, assistance, benefit, privilege or authorization, including, but not limited to, any authorization to create, expand, improve, acquire, affiliate or merge with any health care payer, because a health care payer, or a person, association, corporation or other entity planning, proposing or operating a health care payer declines to pay for or arrange for the payment of any abortion procedure that violates its conscience.
(m) Denial of aid or benefits. -- It shall be unlawful for any public official, agency, institution or entity to deny any form of aid, assistance, grants, or benefits or in any other manner coerce, disqualify or discriminate against any health care payer, or any person, association, corporation or other entity attempting to establish a new health care payer or operating an existing health care payer because the existing or proposed health care payer declines to pay for, or arrange for the payment of, any abortion procedure that is contrary to its conscience.
(n) Civil remedies. -- A civil action for damages or injunctive relief, or both, may be brought for the violation of any provision of this section. It shall not be a defense to any claim arising out of the violation of this section that the violation was necessary to prevent additional burden or expense on any other health care provider, health care institution, individual or patient.
(o) Damage remedies. -- Any individual, association, corporation, entity or health care institution injured by any public or private individual, association, agency, entity or corporation by reason of any conduct prohibited by this section may commence a civil action. Upon finding a violation of this section, the aggrieved party shall be entitled to recover threefold the actual damages, including pain and suffering, sustained by such individual, association, corporation, entity or health care institution, the costs of the action, and reasonable attorney?s fees; but in no case shall recovery be less than five thousand dollars for each violation in addition to costs of the action and reasonable attorney?s fees. These damage remedies shall be cumulative, and not exclusive of other remedies afforded under any other state or federal law.
(p) Injunctive remedies . -- The court in such civil action may award injunctive relief, including, but not limited to, ordering reinstatement of a health care provider to his or her prior job position.


NOTE: The purpose of this bill is to provide that health care providers, health care institutions or health care payers are not required to participate in abortion procedures that violate their respective consciences while providing immunity for health care providers, institutions and payers for refusing to participate in abortion procedures. The bill would also prohibit discrimination against health care providers, institutions and payers that refuse to participate in abortion procedures and prohibit the denial of assistance payments due to such a refusal to participate in abortion procedures. Finally, the bill provides civil penalties for violations.

This section is new; therefore, strike-throughs and underscoring have been omitted.